92 Decision Citation: BVA 92-18229
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-51 834 ) DATE
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THE ISSUE
1. Entitlement to an increased evaluation for
post-traumatic stress disorder, assigned a 30 percent rating
since November 12, 1985.
2. Entitlement to an evaluation in excess of 50 percent for
post-traumatic stress disorder, prior to November 1, 1988.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
S. L. Kennedy, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1966 to
August 1969 and from July 1977 to October 1982. This matter
came before the Board of Veterans' Appeals (hereinafter the
Board) on appeal from rating decisions of the Columbia,
South Carolina, Regional Office (hereinafter RO). In an
August 1988 rating decision, the RO denied the veteran's
claim of entitlement to an evaluation in excess of
30 percent for post-traumatic stress disorder. The notice
of disagreement for this action was received in October
1988. In a January 1989 rating decision, the RO increased
the veteran's disability evaluation for service-connected
post-traumatic stress disorder to 50 percent, effective from
November 1, 1988, following a period of 38 C.F.R.
§ 4.29 benefits. The notice of disagreement for this action
was received in March 1989. The statement of the case was
issued in April 1989. The substantive appeal was received
in October 1989. The veteran appeared and presented
testimony before a Hearing Officer at the RO in November
1989. The RO confirmed and continued the 50 percent
disability evaluation in a June 1990 rating decision. A
supplemental statement of the case was issued in June 1990.
In a September 1990 rating decision, the 50 percent
disability evaluation was again confirmed and continued. In
an August 1991 rating decision, the RO again denied the
veteran's claim of entitlement to an evaluation in excess of
50 percent for service-connected post-traumatic stress
disorder. A supplemental statement of the case was issued
in September 1991. The case was transferred to the Board,
and received and docketed in December 1991. The veteran has
been represented throughout this appeal by Disabled American
Veterans, who submitted additional written argument to the
Board in March 1992.
REMAND
Effective February 3, 1988, the criteria for rating
psychiatric disabilities were revised. However, in the
April 1989 statement of the case, it appears that the RO did
not provide the veteran with the appropriate regulations
governing the criteria for rating psychiatric disabilities
subsequent to February 3, 1988. As the statement of the
case and subsequent supplemental statements of the case do
not provide the veteran with the applicable laws and
regulations upon which the RO based its determination of the
issue or issues pursuant to Rule of Practice 20, 38 C.F.R.
§ 19.120 (1991), the RO is requested to provide the veteran
with the appropriate criteria for rating psychiatric
disabilities effective February 3, 1988.
The veteran's accredited representative in this case has
also requested that the case be remanded in order to develop
the issue of entitlement to a total rating based on
individual unemployability due to service-connected
disabilities. It has been asserted that the RO has not
addressed this issue and that the issue is inextricably
intertwined with the currently certified issue. However, we
note that, in correspondence to the veteran dated in
September 1991, the RO provided the veteran with the
appropriate form so that further consideration could be
given to his claim for individual unemployability based on
service-connected disabilities. While we do not feel that
this issue is inextricably intertwined with the issue
currently certified on appeal within the meaning of that
term as outlined in Harris v. Derwinski, 1 Vet. App. 180
(1991), we find that this issue has been reasonably raised
by the veteran in documents or oral testimony associated
with the current claim. Therefore, in an effort to
consolidate all issues on appeal, the RO is requested to
develop this issue prior to recertification of the issue on
appeal at the present time.
In connection with this, the RO is requested to procure and
consider all relevant VA and other records which may be
pertinent to resolution of the issue of a total rating based
on individual unemployability due to service-connected
disabilities. In connection with this, the RO should
procure all records regarding the award of disability
compensation by the Social Security Administration, and all
Department of Veterans Affairs (hereinafter VA) outpatient
treatment records including those from the VA Medical Center
in Augusta concerning a possible post-traumatic stress
disorder rehabilitation phase program the veteran may have
entered in June 1991. Information from the veteran's last
employer should be procured and associated with the current
evidence. Additionally, the RO is requested to afford the
veteran a current VA examination of all service-connected
disabilities if it is determined that the current medical
evidence of record is insufficient upon which to base a
decision with respect to a total rating based on individual
unemployability due to service-connected disabilities.
The VA has a duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C. § 5107(a)
(1992); 38 C.F.R. § 3.103(a) (1991). In view of the
foregoing, and in order to ensure a complete and adequate
record, the case is REMANDED to the RO for the following
action:
1. The RO should undertake to complete
all development in association with the
veteran's claim for a total rating based
on individual unemployability due to
service-connected disabilities. In this
regard, the RO should procure all
pertinent documents connected with an
award of disability compensation by the
Social Security Administration to the
veteran; all VA outpatient treatment
records through the present time not
currently associated with the current
claim; and employment information from
the veteran's last employer. A VA
examination should be afforded the
veteran if it is determined that the
current medical evidence of record is
insufficient upon which to base a
decision.
2. The RO should issue a supplemental
statement of the case which includes a
summary of the additional evidence
submitted, citations of the applicable
laws and regulations, particularly those
pertaining to the criteria for rating
psychiatric disabilities, effective
February 3, 1988, and the reasons for the
decision.
When the aforementioned development has been completed, the
veteran and his representative should be afforded an
opportunity to respond thereto. If the benefits sought
remain denied, the record should then be returned to the
Board for further appellate consideration.
The purpose of this REMAND is to ensure that the veteran is
afforded due process of law and to procure additional data.
No action is required of the veteran until he receives
further notice. The Board intimates no opinion, either
factual or legal, as to the determination warranted in this
case by reason thereof.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
HARRY M. McALLISTER, M.D.
J. U. JOHNSON
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.